Постановление Европейского суда по правам человека от 23.04.2009 «Дело Хачукаев (Khachukayev) против России» [англ.]

nvestigators' decisions to take up case No. 34023;
(e) procedural decisions concerning extension of the time-limits for the investigation in the criminal case;
(f) letters informing the applicant about suspensions and resumptions of the investigation in the criminal case;
(g) a procedural decision of 5 June 2006 to institute criminal proceedings in connection with Murad Khachukayev's murder.
91. On 18 September 2008 the Court declared the application partially admissible and reiterated its request for a copy of the investigation file. The Court also requested information on the progress of the investigation after July 2006.
92. In response, the Government submitted an update of the investigation but no documents from the investigation file. They reiterated that disclosure of the documents would violate Article 161 of the Code of Criminal Procedure since the file contained personal data of participants in the criminal proceedings.

II. Relevant domestic law

93. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (No. 40464/02, §§ 67 - 69, 10 May 2007).

THE LAW

I. The Government's preliminary objection

A. The parties' submissions

94. The Government contended that the application should be declared inadmissible for failure to exhaust domestic remedies, as the investigation into the abduction and murder of Murad Khachukayev was still in progress. They argued that within the framework of the criminal proceedings the applicant, who had been granted victim status in the criminal case, could have complained about the acts or omission of the investigators to domestic courts and that he could have lodged a civil claim for compensation.
95. The applicant contested the Government's objection. He claimed that an administrative practice consisting of the authorities' continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in his case. He argued that the only effective remedy in this case, that is the criminal investigation, had proved ineffective, as it had been pending for several years but had failed to produce any tangible results.

B. The Court's assessment

96. The Court notes that in its decision of 18 September 2008 it considered that the question of the exhaustion of domestic remedies was closely linked to the substance of the applicant's complaints and should be joined to the merits.
97. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, No. 41964/98, § 65, 27 June 2006).
98. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of ille



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